State v. Okafor

• Decision Date: 25 November 2020
• Docket Number: No. SC20-323,SC20-323
• Citation: 306 So.3d 930
• Parties: STATE of Florida, Petitioner, v. Bessman OKAFOR, Respondent.
• Court: Florida Supreme Court

306 So.3d 930

STATE of Florida, Petitioner,

v.Bessman OKAFOR, Respondent.

No. SC20-323

Supreme Court of Florida.

November 25, 2020

Ashley Moody, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Petitioner.

Mark E. Olive of Law Office of Mark E. Olive P.A., Tallahassee, Florida; Sandra Lee Woodall, Orlando, Florida; and Marc J. Burnham, Orlando, Florida, for Respondent.

Elliot H. Scherker of Greenberg Traurig, P.A., Miami, Florida, for Amici Curiae Paolo Annino, Richard M. Benham, Howard K. Blumberg, Neil Chonin, John A. Devault, III, Juan Carlos Gomez, Bryan Gowdy, Scott F. Norberg, Patsy Palmer, Ediberto Roman, George E. Schulz, Jr., Harvey S. Sepler, Rebecca Sharpless, and Sylvia H. Walbolt.

PER CURIAM.

This case is before the Court on a petition filed by the State of Florida. See art. V, § 3(b)(7), Fla. Const. The State asks us to reinstate the 2015 death sentence of Bessman Okafor, which we vacated on direct appeal in 2017 under the then-applicable rule of Hurst v. State , 202 So. 3d 40 (Fla. 2016). We partially receded from Hurst in State v. Poole , 297 So. 3d 487 (Fla. 2020), and Okafor's resentencing has yet to occur. The State argues that reinstatement of Okafor's death sentence is required because Poole took away the legal basis for our vacatur of that sentence and because the sentence would have been constitutional under the correct rule announced in Poole .

We hold that our judgment vacating Okafor's death sentence is final, that neither we nor the trial court can lawfully reinstate that sentence, and that resentencing is therefore required. In reaching this conclusion, we acknowledge the burden that resentencing proceedings will place on the victims of Okafor's crimes. We also acknowledge the consequences for the victims in similar cases that will be governed by our decision here. Nonetheless, our holding is compelled by applicable law.

BACKGROUND

In 2015, a jury found Bessman Okafor guilty of first-degree premeditated murder for the killing of Alex Zaldivar. The jury also found Okafor guilty of attempted first-degree murder and armed burglary of a dwelling with explosives or a dangerous weapon. Okafor v. State , 225 So. 3d 768, 772 (Fla. 2017). Consistent with the jury's 11-to-1 recommendation, the trial court sentenced Okafor to death for the first-degree murder conviction. We affirmed the conviction on direct appeal, but we vacated Okafor's death sentence and remanded for a new penalty phase proceeding. Id. at 770.

Our vacatur of Okafor's death sentence relied on Hurst . Id. at 775. In Hurst we had held, among other things, that a defendant is not constitutionally eligible for a death sentence unless there is a unanimous jury recommendation of death and a unanimous jury finding that the aggravating factors outweigh any mitigating circumstances. Several years later, in Poole , we receded from Hurst "except to the extent that it held that a jury must unanimously find the existence of a statutory aggravating circumstance beyond a reasonable doubt." Poole , 297 So. 3d at 491. Given the jury's unanimous verdicts finding Okafor guilty of one or more contemporaneous violent felonies, Okafor would have been constitutionally eligible for a death sentence under the rule of Poole .

We decided Poole on January 23, 2020, at which time Okafor's resentencing trial had not yet begun. Therefore, our Poole decision in hand, the State asked the trial court to reinstate Okafor's death sentence. At a hearing on the State's motion, the trial court asked counsel for the State: "[D]o you have a case from the Florida Supreme Court that would say that I can ignore their mandate under the situation that we find ourselves in?" The State admitted it had no such authority and acknowledged that the deadline to seek a recall of the mandate had expired years earlier.¹ The trial court denied the State's motion, ruling that a circuit court lacks the authority to ignore a supreme court mandate.

The State then filed a petition in this Court invoking article V, section 3(b)(7) of the Florida Constitution. The petition asks that we issue either: (1) a constitutional writ (under the "all writs" provision of article V) directing the trial court to reinstate Okafor's death sentence; or (2) a writ of prohibition directing the trial court not to go forward with Okafor's new penalty phase trial.

JURISDICTION

Our jurisdiction to consider the State's request for a writ of prohibition is not in question. But Okafor argues that we lack jurisdiction to consider the State's request for a constitutional writ under the "all writs" provision of article V, section 3(b)(7). That provision says that the supreme court may issue "all writs necessary to the complete exercise of its jurisdiction." Art. V, § 3(b)(7). It has long been understood that "the doctrine of all writs is not an independent basis for this Court's jurisdiction." Roberts v. Brown , 43 So. 3d 673, 677 (Fla. 2010). "Rather, its use is restricted to preserving jurisdiction that has already been invoked or protecting jurisdiction that likely will be invoked in the future." Id.

The conditions for us to exercise jurisdiction to hear the State's all writs petition are satisfied here. We previously exercised jurisdiction over the appeal of Okafor's murder conviction and death sentence, and the State's petition questions the continuing validity of our judgment resolving that appeal. Moreover, this Court traditionally has taken an expansive view of our supervisory jurisdiction over all proceedings in cases where a death sentence has been imposed. For example, we have said: "[I]n addition to our appellate jurisdiction over sentences of death, we have exclusive jurisdiction to review all types of collateral proceedings in death penalty cases. This includes cases in which this Court has vacated a death sentence and remanded for further penalty proceedings." State v. Fourth Dist. Ct. of Appeal , 697 So. 2d 70, 71 (Fla. 1997) ; see also Bedford v. State , 633 So. 2d 13, 14 (Fla. 1994) (finding all writs jurisdiction to consider a challenge to a kidnapping sentence because "[w]e previously had jurisdiction of Bedford's kidnapping sentence in conjunction with his appeal from a conviction of first-degree murder and a sentence of death"). In light of these precedents, we have jurisdiction to consider on the merits the State's request under the all writs provision.

ANALYSIS

A. All Writs

This case ultimately is about the finality of our judgment resolving Okafor's appeal. It is a bedrock principle that "the judgment of an appellate court, where it issues a mandate, is a final judgment in the cause." O.P. Corp. v. Village of N. Palm Beach , 302 So. 2d 130, 131 (Fla. 1974) ; see also Philip J. Padovano, Florida Appellate Practice § 20:8 (2020 ed.) ("An appellate court decision ordinarily becomes final when the appellate court issues a document known as a mandate."). When the mandate issued in Okafor's appeal, our judicial labor was complete, even though our judgment resolving the appeal required further proceedings in the trial court.

The substance of our judgment was to "vacate [Okafor's] death sentence and remand for a new penalty phase." Okafor , 225 So. 3d at 770. When an appellate court vacates a sentence and orders a remand, "there is no sentence until the [trial] court imposes a new one." United States v. Mobley , 833 F. 3d 797, 802 (7th Cir. 2016). "A prior sentence, vacated on appeal, is a nullity." Teffeteller v. State , 495 So. 2d 744, 745 (Fla. 1986). Accordingly, as to Okafor's death sentence (though not his murder conviction), our judgment "wiped the slate clean." Pepper v. United States , 562 U.S. 476, 507, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011).

In order to change this status quo—to undo our final judgment vacating Okafor's death sentence—we would have to recall our mandate and then render a different judgment. But the law constrains our ability to do so. Section 43.44, Florida Statutes (2019), says that an appellate court's mandate "may not be recalled more than 120 days after it has been issued." Similarly, Florida Rule of Appellate Procedure 9.340(a) says that a "court may direct the clerk to recall the mandate, but not more than 120 days after its issuance."

We have no authority to use the all writs provision to do indirectly what governing law prevents us from doing directly. It is undisputed that the 120-day deadline to recall the mandate in Okafor's appeal expired long before our decision in Poole and therefore before the State's subsequent petition seeking the reinstatement of Okafor's death sentence. In these circumstances, there is no available legal means for us to undo our final judgment vacating Okafor's death sentence.²

The State resists this conclusion on several grounds, starting with its assertion that our judgment vacating Okafor's conviction is not final. The State refers to our judgment as a "non-final order" and argues that there will be no "finality as to judgment" in Okafor's case until he is resentenced. But the overall finality of Okafor's case is not at issue here. What matters is the finality of our judgment vacating Okafor's death sentence. Under the binding legal principles we have explained, that judgment became final when our mandate issued, and we have no authority to revisit that judgment now.

The State also argues that recognized exceptions to the law of the case doctrine allow us to reinstate Okafor's death sentence. "The law-of-the-case doctrine is the long-established ‘principle that the questions of law decided on appeal to a court of ultimate resort must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.’ " Delta Prop. Mgmt. v. Profile Invs., Inc. , 87 So. 3d 765, 770 (Fla. 2012) (quoting McGregor v. Provident Tr. Co. , 119 Fla. 718, 162 So. 323, 327 (1935) ). One exception to the doctrine allows departure from the law of the case when there has...